2022 (12) TMI 207 - AT - Income Tax

Revision u/s 263 - set off of loss in speculation business against business income as against the provisions contained in Explanation to section 73 - as per CIT, assessment order u/s 147 was erroneous since the assessing officer accepted the argument of the appellant that the amendment to explanation to section 73 by Finance Act (No.2) of 2014 was retrospective and hence applied to assessment year 2014-15 - HELD THAT - As rightly pointed out by the Ld. A.R., the issue relating to applicability of Explanation to section 73 of the Act, which would operate retrospectively from 1.4.1997 though the amendment was made w.e.f. 1.4.2015 as this issue has been considered by this Tribunal in assessee s own case in assessment year 2013-14 2018 (9) TMI 2104 - ITAT COCHIN wherein assessee filed appeal against the order passed by Ld. Principal CIT u/s 263 of the Act as held amendment inserted to Explanation to section 73 by Finance (No. 2) Act, 2014 is to be applied retrospectively from the date of insertion to Explanation to section 73 of the Act. In coming to this view, we take support from the judgment of the Supreme Court in the case of CIT vs. Alom Extrusions Ltd. 2009 (11) TMI 27 - SUPREME COURT wherein Their Lordships were considering the amendment made by the Finance Act, 2003 by omitting the second proviso to section 43B of the Act w.e.f. 01/04/2004 and bringing about uniformity in the first proviso by equating tax, duty cess and fees with contribution to welfare funds viz. Provident Fund, etc. The Supreme Court held that the aforesaid amendment in section 43B of the Act by Finance Act, 2003 is curative in nature and would therefore apply retrospectively w.e.f. 01/04/1988. In the present case, the principle business of the assessee is trading in shares. Hence, deemed speculative loss from trading in shares is to be set off of against the business income of the assessee. This ground of the assessee is allowed. Being so, same issue cannot be taken up by Ld. Principal CIT in assessment year 2014-15 as this issue was already decided by the Tribunal in assessment year 2013-14. Hence, we decide this issue in favour of the assessee and against the revenue.

Issues Involved:

1. Validity of the Principal Commissioner of Income Tax's (PCIT) order under section 263 of the Income-tax Act, 1961.
2. Assessment of the amendment's retrospective application to Explanation to section 73.
3. Disallowance under section 14A.
4. Excess depreciation on fixed assets.

Detailed Analysis:

1. Validity of the Principal Commissioner of Income Tax's (PCIT) order under section 263:

The appellant contended that the PCIT's order under section 263 was against the law and facts. The PCIT deemed the assessment order under section 147 as erroneous because the assessing officer accepted the appellant's argument that the amendment to Explanation to section 73 by Finance Act (No.2) of 2014 was retrospective and thus applied to the assessment year 2014-15. The appellant argued that the assessment was completed based on the ITAT order for the assessment year 2013-14, which was binding on the assessing officer. Therefore, the assessment was not erroneous, and the revision was invalid.

2. Assessment of the amendment's retrospective application to Explanation to section 73:

The appellant argued that the amendment to Explanation to section 73 by Finance Act (No.2) of 2014, which came into effect from 01.04.2015, was clarificatory and thus operated retrospectively from 01.04.1977. The assessing officer had followed the Tribunal's decision in the appellant's own case for the earlier year, which was not countered in the section 263 order. The Tribunal held that the amendment to Explanation to section 73 was indeed curative and classificatory in nature and should be applied retrospectively from 01.04.1977. Consequently, the loss in speculative business allowed to be set off against business income by the AO was not erroneous.

3. Disallowance under section 14A:

The PCIT concluded that the assessing officer had omitted to consider the disallowance under section 14A. The appellant had reported expenses against exempt income as nil in the tax audit report, which was accepted by the assessing officer. The Tribunal noted that the issue of disallowance under section 14A was not the subject matter of reassessment, and thus, no revision under section 263 was possible against the reassessment order passed on 19.12.2018. Moreover, the revision should have been made within the time limit from the date of intimation under section 143(1), which was not adhered to by the PCIT.

4. Excess depreciation on fixed assets:

The PCIT revised the order to withdraw excess depreciation on fixed assets, which could have been rectified under section 154. The Tribunal observed that the issue of excess depreciation was not the subject matter of reassessment. Therefore, the PCIT could not revise the reassessment order under section 263. Additionally, the revision was barred by time as it was not made within the permissible period from the date of intimation under section 143(1).

Conclusion:

The Tribunal allowed the appeal of the assessee, holding that the PCIT's order under section 263 was invalid. The amendment to Explanation to section 73 was to be applied retrospectively, and the issues of disallowance under section 14A and excess depreciation on fixed assets were not subject to revision under section 263 due to time constraints and their irrelevance to the reassessment.

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